Legal Article

The 42nd Amendment to the Constitution of India: A Turning Point in Constitutional History

Shivendra Pratap Singh

Advocate

High Court Lucknow

Article

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Published on: 2 Aug, 2023

Introduction:

The 42nd Amendment, enacted in 1976 during the Emergency period under Prime Minister Indira Gandhi’s administration, is often referred to as the “Mini Constitution” due to the sweeping changes it brought to the Constitution. The amendment aimed to reduce the power of the Supreme Court and High Courts to pronounce upon the constitutional validity of laws. It also sought to lay down the directives for the governance of the country more explicitly.

Key Provisions:

1. Preamble Altered: The words “Secular” and “Socialist” were added to the Preamble, emphasizing the state’s commitment to an unbiased treatment of all religions and the goal of achieving a socialist pattern of society.

2. Directive Principles Strengthened: The Directive Principles, which are guidelines for the state’s governance, were given precedence over the Fundamental Rights of individuals. Articles promoting the welfare of the people and securing social, economic, and political justice were emphasized.

3. Fundamental Duties: A new section, Article 51A, was added, prescribing certain Fundamental Duties for citizens. These duties serve as moral obligations for all citizens, fostering a spirit of patriotism and upholding the unity of India.

4. Duration of Legislatures: The life of the Lok Sabha and State Legislative Assemblies was extended from five to six years.

5. Jurisdiction of Courts Limited: The power of the courts to review any amendment to the Constitution on the grounds of infringement of Fundamental Rights was taken away.

6. Empowering the President: The President was bound to act according to the advice of the Council of Ministers.

7. Transfer of Certain Subjects: The amendment transferred five subjects from the State List to the Concurrent List: education, forests, weight and measures, protection of wild animals and birds, and the administration of justice.

8. Strengthening the Central Government: Articles 257A and 312A provided that the centre can deploy its armed forces in any state to deal with grave situations of law and order and create All-India Services without the Rajya Sabha’s consent.

Implications:

1. Centralization of Power: One of the most significant effects of the 42nd Amendment was the consolidation of power in the hands of the central government. This was seen as a move to curtail any regional uprisings and create a more homogeneous political landscape.

2. Weakening of Judiciary: By curbing the powers of the judiciary, especially regarding constitutional amendments, the 42nd Amendment sought to make the parliament sovereign. However, this move faced criticism as it posed threats to the checks and balances system in India’s democracy.

3. Clarification of Directive Principles: By giving Directive Principles an upper hand over Fundamental Rights, the amendment aimed at creating a clearer roadmap for India’s socio-economic transformation.

4. Codification of Duties: By introducing Fundamental Duties, the amendment aimed to inculcate a sense of national duty and discipline among citizens.

Criticism:

1. Assault on Democracy: Many experts and opposition leaders termed the 42nd Amendment an assault on democracy, fearing it would give unbridled power to the central government.

2. Erosion of Federalism: By shifting more power to the center and transferring subjects to the Concurrent List, federalism, a basic tenet of the Constitution, was seen as being eroded.

Later Developments:

The 44th Amendment of 1978 undid many changes introduced by the 42nd Amendment, especially those regarding the power and independence of the judiciary.

Conclusion:

The 42nd Amendment is a landmark in the history of the Indian Constitution, reflecting the political climate of the mid-1970s. While its intent was to streamline governance and clearly define the state’s duties, it remains controversial for the vast changes it brought in, many of which were perceived as centralizing power and weakening democratic institutions.